This аction was brought on December 5, 1952 by Harvey Aluminum Inc. (hereafter referred to as “Harvey”), against American Cyanamid Company (hereafter referred to as “Cyanamid”) seeking speсific performance of an alleged agreement to sell the tangible assets of Cyanamid’s subsidiary *107 Berbice Company Limited (hereafter referred to as “Berbice”). These аssets consist of facilities for the processing and mining of bauxite ore from certain land in British Guiana. At the time of the filing of its complaint Harvey obtained an ex parte temporary restraining order pending the hearing and determination of its motion for an injunction pendente lite against the sale or transfer of the assets in question by Cyanamid to anyone other than the plaintiff. At the conclusion оf a hearing before Judge Sugarman, during the course of which Harvey Machine Co., Inc., and Ber-bice were added as parties plaintiff and defendant respectively, plaintiffs’ motiоn for a preliminary injunction was denied. The district court found, inter alia, that the plaintiffs’ chances of success on the ultimate trial were “remote, if not completely nil.” On December 15, aftеr the temporary stay had been dissolved by Judge Sugar-man, an amended complaint was filed by the plaintiffs adding Reynolds Metals Company (hereafter referred to as “Reynolds”) as a defendant and seeking as additional relief that any assets received by Reynolds from Berbice be subjected to a trust in favor of the plaintiffs. On December 17 notices of appеarance were filed on behalf of all three defendants. On the same day plaintiffs filed a notice of appeal from Judge Sugar-man’s order denying a preliminary injunction, alsо entered on December 17. An application by the plaintiffs for a stay pending appeal was denied by Judge Augustus N. Hand on December 18, and on December 22 Berbice transferrеd its assets to the defendant Reynolds. Nothing has been done either to perfect or dismiss the appeal. Fearing that the plaintiffs were about to bring suit in British Guiana, the defendants obtained an ex parte order from Judge Conger on January 16, 1953, temporarily staying the plaintiffs and directing them to show cause why they should not be enjoined from commencing any legal proceeding in any other jurisdiction involving the same subject matter. On January 19, prior to the return day of the order to show cause, the plaintiffs filed a notice of dismissal stating that they “hereby vountarily dismiss this action as against all defendants.” Judge Clancy on January 20, 1953 denied a motion by the defendants to vacate this notice of dismissal, and also denied the defendants’ motion for injunctive relief without opinion. This appeal is from the district court’s denial of these two motions. An order to show cause containing a temporary stay against the bringing of any legal proceeding by thе plaintiffs involving the same questions outside of this jurisdiction was issued by Judge Augustus N. Hand on January 26, and on the hearing of the order to show cause a motion for a stay pending the disposition of the dеfendants’ appeal was granted by this court on February 3. Following the temporary stay against the plaintiffs the defendants initiated proceedings in British Guiana to secure the consеnt of the government there to the transfer of certain leases. On February 13 an order was issued modifying the stay previously granted against the plaintiffs by allowing them to take any steps that might bе necessary to contest these proceedings.
The plaintiffs contend that their attempted voluntary dismissal without a court order was authorized by Rule 41(a) 1 of the Federal Rules оf Civil Procedure, 28 U.S.C., which provides that: “* * * an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment * * The purpose of this rule is to facilitate voluntary dismissals, but to limit them to an early stage of the proceedings before issue is joined. 5 Moore’s Fеd.Practice 1007 (2d ed.). The amount of research and preparation required of defendants was stressed by the Committee Note when Rule 41(a) 1 was amended in 1948 as á reason for adding the reference to a motion for summary judgment. 5 Moore’s Fed.Practice 1005 (2d ed.). The hearing before Judge Sugarman on the plaintiff’s motion for a preliminary injunction required several days of argument and testimony, yielding a record of some 420 pages. Further, the merits of the controversy were squarely raised and the district court in part based its denial of the injunction on its conclution that the plaintiffs’ chance of success
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on the merits was small. Consequently, although the voluntary dismissal was attempted before any paper labeled “answer” or “motion for summary judgment” was filed, a literal application of Rule 41(a) 1 to the present controversy would not be in accord with its essential purpose of preventing arbitrary dismissals after an advanced stage of a suit has been reached. See Butler v. Denton, 10 Cir.,
Plaintiffs make the further contention that they at least had the right to dismiss their claim against Reynolds alone under Rule 41(a) 1, since Reynolds did not participate in the proceeding relative to the motion for a preliminary injunction, and had not answered or made a motion for summary judgment when the notice of dismissal was given. However, Rule 41(a) 1 provides for the voluntary dismissal of an “action” not a “claim”; the word “action” as used in the Rules denotes the entire contrоversy, whereas “claim” refers to what has traditionally been termed “cause of action.” Rule 21 provides that “Parties may be dropped or added by order of the court on mоtion * * * ” and we think that this rule is the one Under which any action to eliminate Reynolds as a party should be taken. See, e. g., Weaver v. Marcus, 4 Cir.,
The defendants also appeal from the denial of their motion for a рreliminary injunction against the bringing by plaintiffs of legal proceedings elsewhere involving the same issue and ask that this court issue the injunction on the ground that irreparable harm will result if proсeedings are also brought in British Guiana requiring the presence there of many of their officers. Presumably the denial by the district court of this motion was not in the exercise of its discretion but was based on the fact that the court regarded the action as no longer before it. Since we have held that the attempted dismissal was ineffective, the denial of the motion for a temporary injunction must also be reversed. We think that the district court has discretion to enjoin another action in British Guiana on the ground of vexatiousness. See Gage v. Riverside Trust Co., C.C.S.D.Cal.,
Reversed and remanded.